MALKEET SINGH (Migration)

[2020] AATA 4163

MALKEET SINGH (Migration) [2020] AATA 4163 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MALKEET SINGH MALKEET SINGH
Mrs NEETU NEETU

CASE NUMBER:  1920371

HOME AFFAIRS REFERENCE(S):          BCC2019/1276010

MEMBER:Bridget Cullen

DATE:21 September 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 21 September 2020 at 4:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Welfare Worker – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 March 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Welfare Worker (ANZSCO – 272613).  

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(1)(a)(i) of Schedule 2 to the Regulations because the position to which the related nomination for approval did not identify the applicant in relation to the position.

6. On 17 August 2020 the Tribunal wrote to the review applicant pursuant to s.359 and s.359A of the Act, inviting the review applicant to provide information if they were wishing to seek Ministerial Intervention, to assist the Tribunal and comments on information that it considered would be part of the reason for affirming the decision under review in writing.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 31 August 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the information or comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.

9. The applicants were represented in relation to the review by their registered migration agent, Mr Richard Glazbrook, of DGA Consultants (MARN – 9358141).

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the application has been identified in a nomination in relation to the position.

    Nomination of a position

12. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

13. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

14. On 17 August 2020, the Tribunal wrote to the applicant, under s.359A and s.359(2) of the Act in the following terms:

    “In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·     On 13 March 2019, you applied for Regional Employer Nomination (Class RN) (Subclass 187) visas.

    ·     The Tribunal has information that on 27 April 2019, you were advised that the nomination referenced in your visa application 13 March 2019 did not identify Malkeet Singh as the nominee in relation to the position.

    This information is relevant to the review because it suggests that you are not the subject of a nomination in an application for approval. The criteria which the Tribunal must look at requires that you are identified in relation to the position for which you have been nominated for (cl.187.233(1)). Furthermore, lodging a new nomination application will not enable you to meet the criteria for this visa application.

    If we rely on this information in making our decision, we may find that as you have not been nominated in the application for approval that you referred to when applying for your Class RN visas, that you are unable to meet cl.187.233(1). If relied upon this way, subject to any comments or response you make, the information would be the reason, or part of the reason, for affirming the decision under review.

    You are invited to give comments on or respond to the above information in writing.”

15. The applicant was invited to comment and provided a due date of 31 August 2020 to respond or give comment on the above. Further, the applicant was invited to provide information to the Tribunal if they were intending to provide information for a request for Ministerial Intervention.

16. The Tribunal, to the date of this decision, has not received a response.

17. The Tribunal therefore is only able to rely on the information already before it, including a response to the Department Delegate stating that the sponsor mistakenly believed that the nomination applied to multiple nominations and accepted that the nomination details were submitted in error and was unrelated to the applicant.

18. The Tribunal therefore agrees with the assessment of the Department Delegate that the applicant was not identified in relation to the position. On this basis, the Tribunal finds that the applicant does not meet cl.187.233(1)(a)(i).

19. Therefore, cl.187.233 is not met.

20. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

21. As the primary review applicant does not meet cl.187.233, it therefore follows that the secondary applicant does not meet cl.187.311, which requires that they are a member of the family unit of a person who meets the primary criterion required for the grant of a Regional Employer Nomination (Permanent) (Class RN) visa. Their decision under review must therefore also be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Bridget Cullen
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.